CITATION:	Queensland Building and Construction Commission v Cummings & Gagliano [2015] QCATA 130
	
PARTIES:	Queensland Building and Construction Commission 
(Applicant/Appellant)	
	v	
	Joseph Patrick Cummings
Ralph Peter Gagliano
(Respondent)	

APPLICATION NUMBER:	APL442-14 and APL453-14	

MATTER TYPE:	Appeals	

HEARING DATE:	12 May 2015	

HEARD AT:	Brisbane	

DECISION OF:	Justice Thomas, President
Member Collins	

DELIVERED ON:	28 August 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	Leave to appeal the decision of Member Howard dated 16 September 2014 is allowed.

2.	The decision of Member Howard dated 16 September 2014 is set aside.

3.	The respondent’s application for review pursuant to s 86(1)(k) of the Queensland Building and Construction Commission Act 1991 is dismissed.

4.	In the event the parties wish to make submissions in respect of the costs of this appeal, written submissions should be filed and served within 14 days of the date of this order.

5.	Unless either of the parties requests an oral hearing as to costs, this aspect will be determined on the papers, after the 14 day period.	

CATCHWORDS:	APPEALS – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – where respondents are not licensees under the provisions of the Queensland Building and Construction Commission Act 1991 – where respondents categorised as ‘excluded individual’ by the Queensland Building and Construction Commission - where respondents sought to have that decision reviewed by the Tribunal - where Queensland Building and Construction Commission applied to strike out application to review - where Queensland Building and Construction Commission contended categorisation of non-licensee individuals not a reviewable decision under section 86 of the Queensland Building and Construction Commission Act 1991 - where Tribunal held that categorisation was reviewable and dismissed strike out application - where Queensland Building and Construction Commission seeks leave to appeal that decision - whether categorisation of a non-licensee as an excluded individual is a reviewable decision.

Queensland Building and Construction Commission Act 1991(Qld) ss 56AC, 56AD, 56AE, 56AG, 56AF, 86, 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142
Queensland Building Services Authority Act 1991 (Qld) (repealed) s 98

Envy Trading v State of Queensland [1997] 1 Qd R 413
Ericson v Queensland Building Services Authority [2013] QCA 391
Fraser Property Development Pty Ltd v Sommerfield [2005] 2 Qd R 394
Gagliano & Anor v Queensland Building and Construction Commission [2014] QCAT 504
Linder v Wright [1976] 14 ALR 105
Pickering v McArthur [2005] QCA 294
Queensland Building Services Authority v Plotkin [2013] QCATA 219	

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr G I Thomson	

RESPONDENT:	Mr M C Long	

REASONS FOR DECISION 
[1]	These proceedings arise as a consequence of an appeal in relation to the decision of Member Howard dated 16 September 2014 in Gagliano & Anor v Queensland Building and Construction Commission (the ‘first decision’).
[2]	The Queensland Building and Construction Commission (‘the Commission’) appeal that decision by which its strike out application was dismissed (APL442-14).

[3]	Mr Gagliano and Mr Cummings have also appealed that decision insofar as it did not extend to a costs order in their favour (APL 453-14).
Background

[4]	The respondents, Mr Gagliano and Mr Cummings, were both, at one point in time, directors of the following three companies:-
a)	St Hillier’s Construction Pty Ltd (‘Construction’);
b)	St Hillier’s Ararat Pty Ltd (‘Ararat’); and
c)	St Hillier’s Pty Ltd (‘SHPL’).
[5]	Liquidators were appointed to Ararat and administrators to each of Construction and SHPL (the ‘relevant events’). 
[6]	As the respondents were directors of these companies within the 12 month period prior to their respective liquidations and administrations, the Commission issued the following notices:
a)	On 17 May 2012, notices informing the respondents that the Commission considered them to be ‘excluded individuals’ in relation to Construction (‘the first event’) and Ararat (‘the second event’). 
b)	On 16 June 2014, a further notice informing the respondents they were considered to be ‘excluded individuals’ in relation to SHPL (‘the third event’). 
[7]	These notices were stated to be issued pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (‘the Act’) and in effect each stated as follows:
TAKE NOTICE pursuant to s56AC of the Queensland Building and Construction Commission Act 1991 (the QBBC Act), QBCC considers you to be an excluded individual for the following reason:

•		You were a director, secretary or influential person for the company at the time of, or within one year, the event. (‘excluded individual notices’)

[8]	At any relevant time, neither of the respondents held a license issued by the Commission pursuant to the Act.
[9]	The consequences for the respondents of being considered by the Commission as ‘excluded individuals’ was dire. Such categorisation excludes the respondents from applying, in the next five years, for entitlement to a licence under the Act.
[10]	Furthermore, as the respondents had each been given three ‘excluded individuals’ notices for three relevant events, the operation of s 58 which deemed them ‘permanently excluded individuals’ was invoked.
[11]	In order to avoid the permanency of such a prohibitive status, the respondents submitted applications to the Commission to become ‘permitted individuals’ in respect of the Construction, Ararat and SHPL liquidations.
[12]	An application by the respondents to become ‘permitted individuals’ was understandable as s 56AD(9) of the Act provides as follows:
If an individual is categorised as a permitted individual for a relevant event, the individual is taken not to be an excluded individual for the relevant event.

[13]	In their applications to the Commission the respondents relied on s 56AC(6), maintaining that  the  consequences in relation to all three events flowed from what was, in substance, one set of circumstances. 
[14]	A submission of this nature sought to avoid the operation of s 58 whereby the respondents faced categorisation as permanently excluded individuals. 
[15]	Section 58 of the Act provides that:
(1) 	A permanently excluded individual is an individual—
(a) 	who has twice been an excluded individual for a relevant event; …

[16]	The Commission determined that s 56AC(6) did not apply. The Commission forwarded correspondence inviting the respondents to apply to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) for review of the ‘excluded individual’ decisions, in particular in relation to the ‘second series of the decisions that your clients are excluded as a result of the event to Construction. The result of such application will better inform QBCC as to the position in respect of the Permitted Individual Reviews…’
[17]	Consequently, the respondents filed applications on 31 January 2014 to the Tribunal seeking review of the ‘excluded individual’ decisions.
[18]	The Commission filed an application on 1 August 2014 to strike out the respondent’s ‘excluded individual’ review applications.  
[19]	The strikeout application asserted, in effect, that as these ‘decisions’ were made pursuant to s 56AC and not pursuant to either ss 56AF or 56AG, they were not reviewable under s 86(1)(k) of the Act.
[20]	In the first decision, Member Howard dismissed the strikeout applications.  
[21]	Member Howard concluded that an implied power to make a decision that an individual is an excluded individual (or an excluded company) resided in s 56AC.
[22]	Member Howard was satisfied that the relevant legislative provisions were ‘manifestly uncertain and ambiguous’ and made a finding that s 86(1)(k)(i) should be interpreted as a reference to ‘a decision under s 56AC that ... a person is an excluded individual or excluded company’.
[23]	No order was made in relation to costs.
Issue for Determination
[24]	The issue for determination is whether a non-licensee ‘excluded individual’ has a right of review in this Tribunal under s 86(1)(k) of the Act. 
Leave to appeal
[25]	The Commission has sought leave to appeal and submits that the first decision (of Member Howard on 16 September 2014) was wrong. Because that decision was not the Tribunal’s final decision in the matter, leave is necessary.
[26]	Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. 
[27]	Section 146 of the QCAT Act sets out the Appeal Tribunal’s powers on appeal where the appeal is on a question of law. It does not provide for rehearing as compared to s 147 which relates to appeals on questions of fact or mixed law and fact. If the question of law resolves the matter as a whole then the Appeal Tribunal may substitute its decision, otherwise it is to remit the matter for further consideration.
[28]	Included in the Commission’s grounds for appeal is an assertion of an error in law in the conclusion that an implied power to make a decision that a person is an excluded individual resides in s 56AC of the Act. Further, it is asserted that the Tribunal erred in its construction of ss 56AC, 56AF, 56AG and 86(1)(k) of the Act.
Statutory Position
[29]	These proceedings concern Part 3A of the Act. That part deals with Excluded and Permitted Individuals and Excluded Companies. It operates to remove from involvement in the building industry those who have been associated with insolvencies and who cannot demonstrate that they have acted reasonably in respect of such events.
[30]	Section 56AC provides as follows:
56AC Excluded individuals and excluded companies 
(1) 	This section applies to an individual if— 
(a) 	after the commencement of this section, the individual takes advantage of the laws of bankruptcy or becomes bankrupt (relevant bankruptcy event); and 
(b) 	5 years have not elapsed since the relevant bankruptcy event happened. 
(2) 	This section also applies to an individual if— 
(a) 	after the commencement of this section, a company, for the benefit of a creditor— 
(i) 	has a provisional liquidator, liquidator, administrator or controller appointed; or 
(ii) 	is wound up, or is ordered to be wound up; and 
(b) 	5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and 
(c) 	the individual— 
(i) 	was, when the relevant company event happened, a director or secretary of, or an influential person for, the company; or 
(ii) 	was, at any time after the commencement of this section and within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the company. 
(3) 	If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event. 
(4) 	If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event. 
(5) 	An excluded individual for a relevant bankruptcy event (the first event) does not also become an excluded individual for another relevant bankruptcy event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the individual. 
(6) 	An excluded individual for a relevant company event (the first event) does not also become an excluded individual for another relevant company event (the other event) if the first event and the other event are both consequences flowing from what is, in substance, the one set of circumstances applying to the company.
(7) 	A company is an excluded company if an individual who is a director or secretary of, or an influential person for, the company is an excluded individual for a relevant event. 
[31]	Section 56AE of the Act provides as follows: 
The commission must not grant a person a licence if the person is— 
(a) 	an excluded individual for a relevant event; or 
(b) 	an excluded company. 
[32]	In order to seek review of an excluded individual status it is necessary to turn to Part 7, Division 3 of the Act which deals with review proceedings.
[33]	Section 87 of the Act provides as follows:
Application for review
A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.
[34]	Section 86 of the Act details ‘Reviewable decisions’, as referred to in s 87, and provides that the Tribunal may review the following decisions of the Commission— 
(a) 	a decision to refuse an application for a licence or a permit; 
...
 (j) 	a decision not to categorise an individual as a permitted individual for a relevant event; 
(k) 	a decision under section 56AF or 56AG that— 
(i) 	a person is an excluded individual or excluded company; or 
(ii) 	an individual is still a director or secretary of, or an influential person for, a company; …

[35]	Section 56AF contains the statutory procedure in the event the Commission considers that an individual who is a licensee is an excluded individual for a relevant event. It includes a requirement that the licensee individual be given written notice that the person is considered an excluded individual, that the person may apply to be categorised as a permitted individual for the relevant event and also the circumstances in which the Commission must cancel the licence.
[36]	Section 56AG contains an identical statutory procedure in the event the Commission considers that a company which is a licensee is an excluded individual for a relevant event.
Applicant’s submission
[37]	The Tribunal’s jurisdiction is confined to that expressly conferred on it by statute. The Tribunal does not have a general jurisdiction to review all decisions of the Commission. In these proceedings the Tribunal’s review jurisdiction is expressly defined by section 86 of the Act.
[38]	It is understandable that the operation of ss 56AF and 56AG is restricted to licensees. The Commission, as part of its operation, maintains records of licensees. The Commission is therefore in a position to give notices to licensees as provided for under these sections.
[39]	Section 86(1)(k) contains a specific reference to ss 56AF or 56AG. It follows that this reference denotes the extent of the relevant rights of review. The statute in its current form defines who has rights. This can be contrasted with the relevant former legislation which included a general provision which allowed for review of ‘another decision of the authority that adversely affects any person’.
[40]	There is no ‘mistake’ in s 86(1)(k) and therefore there is no justification to adopt a strained (or changed) construction of the statute. To take such a step would be extraordinary - the interpretation determined by Member Howard goes beyond implication and into the depths of total replacement.
[41]	The decision in Queensland Building Services Authority v Plotkin, reflects the proper interpretation of the Act which is that a non-licensee ‘excluded individual’ has no rights of review in the Tribunal under s 86(1)(k). 
[42]	Non-licensee ‘excluded individuals’ rights are by no means illusory - they may seek remedy in relation to an ‘excluded individual’ status pursuant to s 86(1)(a).
Respondent’s submission
[43]	The interpretation of the Act in the first decision was correct.
[44]	The power to make a decision that a person (which includes both licensees and non-licensees) is an excluded individual resides as an ‘implied power’ in s 56AC.
[45]	The difficulty of implementing the words of s 86(1)(k), as they appear, is that ss 56AF and 56AG do not confer any power to make a ‘decision’ that a person is an excluded individual or company. Rather, ss 56AF and 56AG deal only with the consequences that follow from such a decision being made.
[46]	The first decision which identified an error in the drafting of s 86(1)(k) was correct. Section 86(1)(k) should therefore be interpreted as a reference to ‘a decision under section 56AC that ... a person is an excluded individual or excluded company’. 
[47]	A contrary interpretation would unfairly permit a right of review for licensees only, whilst excluding the same right of review for non-licensees. 
Discussion
[48]	Having regard to the provisions of s 56AE it is understandable that once ‘considered’ by the Commission as an ‘excluded individual’, an individual, who might contemplate seeking at some later stage a licence under the Act, would take steps to have this categorisation removed. The gravity of the consequences is further compounded, in circumstances when an individual is at least twice considered an excluded individual for a relevant event, by virtue of the operation of s 58.
[49]	The jurisdiction of this Tribunal to review decisions of the Commission is defined in s 87 of the Act. Section 87 provides that ‘a person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision’.
[50]	Reviewable decisions of the Commission are defined in some detail in         s 86 and include the following:
(1)((j) - A decision not to categorise an individual as a permitted individual for the relevant event; 
and 
(1)(k) - A decision under s 56AF or 56AG that-
(i)  	a person is an excluded individual or excluded company
[51]	Sections 56AD, 56AF and 56AG deal with circumstances under which an individual can apply to become a ‘permitted individual’ as a consequence of being ‘considered’ an ‘excluded individual’ by the Commission.  
[52]	Sections 56AF and 56AG deal with the position where an individual or a company who are licensees under the Act have been considered excluded individuals. These provisions describe the statutory responsibilities of the Commission as to these licensees and include the requirement to notify the individual, or the relevant individual of a company, of their right to apply to the Commission to be categorised as a permitted individual. 
[53]	The Commission has no statutory responsibility to provide such notifications to non-licensees.
[54]	Section 56AD deals with the procedure available to an individual, who seeks to be categorised as a permitted individual. The procedure outlined in section 56AD is available to both licensees and non-licensees. The procedure may be undertaken following a Notice issued to licensees by the Commission pursuant to either ss 56AF or 56AG. Alternatively it may be undertaken by non-licensees who have ‘otherwise been made aware, that the commission considers the individual to be an excluded individual for a relevant event’. This happened in the case of the respondents.
[55]	If an individual is successful in an application to the Commission pursuant to s 56AD, ‘the individual is taken not to be an excluded individual for the relevant event’.
[56]	If an individual is, however, unsuccessful in such an application, under s 86(1)(j), the Tribunal may review the decision of the Commission not to categorise an individual as a permitted individual for a relevant event.
[57]	The proceedings before this Tribunal do not relate to a review of a decision not to categorise an individual as a permitted individual as is provided for under s 86(1)(j). These proceedings relate to the opportunity for review of the excluded individual status by a non-licensee.
[58]	Section 86(1)(k) outlines jurisdiction where the decision relates to whether a person is an excluded individual. The reference in s 86(1)(k) is to a decision under ss 56AF or 56AG as to an excluded individual or an excluded company, respectively.	
[59]	Much has been said in these proceedings as to whether a ‘decision’ is in fact made under ss 56AF or 56AG.
[60]	The respondent suggests there is no ‘decision’ made under either of ss 56AG or 56AF, but rather that the decision with respect to whether a person is an excluded individual must have been made under s 56AC. This was the finding of Member Howard in the first decision.  
[61]	In s 56AC there is no specific reference to a ‘decision’. This is conceded by the respondents who maintain that the ‘decision’ is implied from the terms of s 56AC.
[62]	On its face, it seems that s 56AC is simply a definition section which prescribes a categorisation as an excluded individual (or excluded company) provided certain conditions are satisfied. No decision seems to be necessary for that categorisation to occur and no decision is referred to in the express terms of s 56AC.  
[63]	On the other hand, the wording of both ss 56AF and 56AG does seem to refer to a decision. It is accepted, however, that these sections are poorly drafted.
[64]	Section 56AF(1) suggests that the section applies “...if the commission considers that an individual who is a licensee is an excluded individual for a relevant event” (emphasis added).	
[65]	The dictionary definition of “consider” indicates that consideration is part of decision making.
[66]	The Merriam-Webster dictionary defines the word “consider”  as:
“To think about (something or someone) carefully especially in order to make a choice or decision”.	
[67]	Sections 56AF and 56AG both require that if the Commission considers that an individual or a company, who is a licensee, is an excluded individual then the Commission must do certain things. This includes giving a written notice to the person or the relevant individual for a company, which may lead to an application about the individual’s status as a permitted individual. Ultimately if the person does not succeed in obtaining status as a permitted individual, the result is cancellation of the individual’s license.	
[68]	If the suggestion is that the wording in ss 56AF and 56AG does not contain any element of a decision, the same can be said but with greater force for s 56AC.
[69]	The respondent’s case is that it is necessary to imply the making of a decision into only one of those sections - s 56AC. There is little support on the wording for the ‘implication’ of a decision as part of the provisions of s 56AC.  
[70]	On the other hand, a decision seems to be an aspect of ss 56AF(1) and 56AG(1) given the use of the word “considers” in both of these provisions.
[71]	The fact that a decision is an element of ss 56AF and 56AG is also supported by the fact that s 86(1)(k) expressly refers to those sections and contemplates a decision having been made. Therefore, the legislative intent, as best as it can be identified, was that ss 56AF and 56AG include the element of decision making – the intent was not to create such a position with respect to s 56AC.	
[72]	The criteria for the categorisation of a person as an excluded individual are set out in s 56AC. By force of that section, if those criteria are met, the person becomes an excluded individual by virtue of s 56AC(3).  
[73]	When the Commission is considering the matter under ss 56AF or 56AG, the Commission would take into account the criteria in s 56AC and the deemed outcome of s 56AC in reaching a conclusion (or decision) that the Commission considers the individual who is a licensee is an excluded individual. This suggests that upon consideration, by reference to the procedure which is outlined in ss 56AF and 56AG and on the criteria listed in s 56AC, a decision occurs.	
[74]	When considering the meaning of legislation, if it is possible to identify a meaning, rather than to restructure the Act, that is the preferable course to take.
[75]	The respondents concede that there is no express decision making reference in s 56AC and also submits that there is no reference to decision making in ss 56AF or 56AG. In either case, the respondents must say that whatever the view there will be a need to imply a decision making process.
[76]	It is the view of this Tribunal that there is no need to restructure the provisions of s 86(1)(k) as suggested by the respondent and as was determined by Member Howard. Historically, the courts have only been willing to correct drafting errors in circumstances of legislative mistake where such drafting confounds the intentions of the legislature. Such a correction is not necessary in the current provisions the subject of this appeal. Whilst poorly drafted, the review jurisdiction of this Tribunal as provided for by s 86(1)(k) is capable of interpretation as we have outlined. 
[77]	Arguments based on unfair consequences do not justify re-construction of a statute. Such arguments are a criticism of the policy – which is a matter dealt with by Parliament and not this Tribunal.
[78]	It is true that the effect of this decision leaves the respondents, who are non-licensees, with no avenue for review of their excluded individual status under the provisions of s 86(1)(k). Currently the reviews of the Commission in relation to the respondents’ Permitted Individual status are in abeyance pending the outcome of this appeal. No doubt those reviews will now proceed.
Order
[79]	This Tribunal orders that:
1.	Leave to appeal the decision of Member Howard dated 16 September 2014 is allowed.
2.	The decision of Member Howard dated 16 September 2014 is set aside.
3.	The respondent’s application for review pursuant to s 86(1)(k) is dismissed.
Costs
[80]	The respondents to this appeal have also filed a separate application seeking leave to appeal the decision of Member Howard by which Member Howard refused to make an award of costs in their favour. As the appellant has been successful in the appeal and the decision of the Member Howard is to be set aside that appeal in relation to costs is now irrelevant.
[81]	In the event the parties wish to make submissions in respect of the costs of this appeal written submissions should be filed and served within 14 days.
[82]	Unless either of the parties requests that there be an oral hearing as to costs, this aspect will be determined on the papers, after the 14 day period.